Victim Participation in Criminal Justice

As a result of a number of developments—including the rise of restorative justice—victims in common-law jurisdictions now have far more input into the criminal process. Victim participatory rights are currently recognized as an important component of criminal justice proceedings. Research has shown that victim participation in justice can help victims who want to be included in proceedings and that victim participation does not result in difficulties or create problems for the smooth operation of the criminal justice system. However, because victim participation in sentencing decisions challenges traditions and established patterns within the criminal courts, these rights sometimes encounter resistance in their implementation. As legal cultures are transformed, however, and victims are increasingly perceived as a legitimate party in proceedings, victim participation can become an acceptable practice and a way to inject restorative justice elements into adversarial justice systems. Ultimately, it is the underlying value system and ideology that will determine whether victims are meaningfully integrated into proceedings. Attempts to integrate victims outside the adversarial criminal justice system through restorative justice schemes have worked for some victims, but they do not serve those who wish to remain within the protective structure of adversarial systems.

This entry reviews the historical development of the role of crime victims in common-law criminal justice systems. It presents and assesses research on the impact of these changes on victims and the criminal justice system. Emerging alternative perspectives and schemes to integrate victims in proceedings are then discussed. The entry concludes by noting some implications for criminal justice policies regarding crime victims.

Victims’ Role in Criminal Proceedings

In adversarial justice systems, a criminal trial entails a conflict between two adversaries—the state and the defendant, and the search for the “truth” is conducted before an impartial adjudicator—the judge. In earlier centuries, crime victims had to assume the responsibility of pursuing the offender and bringing him or her to justice. Over time, this state of affairs changed. With the centralization of power and creation of the concept of “the King’s peace,” victims lost their active role in justice. The state began to prosecute a defendant on behalf of the community, and the crime victim was relegated to the role of witness for the prosecution.

For most victims, even their role as witness never materializes. Most criminal incidents do not result in a trial as a result of the attrition of cases. The police may fail to make an arrest, or the prosecutor may decide not to file a criminal charge. If a charge is filed, it may be stayed or withdrawn. In the vast majority of cases, the offender ultimately pleads guilty, and the case proceeds to sentencing without a criminal trial being held. Unlike continental legal systems, which provide victims with a formal role in criminal proceedings, adversarial legal systems do not accord victims any formal standing in the prosecution of “their” offenders. Victims have little influence over whether (or how) the state chooses to proceed against the alleged perpetrator. Thus, until fairly recently, crime victims were denied any input into the sentence of the offender. Yet the state highly depends on victim cooperation, without which a criminal prosecution is unlikely to succeed.

Changes in the Role of Crime Victims

Until the 1970s, crime victims were considered the “forgotten persons” of criminal justice—invisible to and neglected by the system. The lack of victim standing in criminal proceedings, and the consequent insensitivity to the needs of crime victims, led to victim dissatisfaction and alienation from the criminal justice system. Surveys of crime victims in a number of countries revealed complaints related to the lack of information about the case as well as frustration due to the lack of input into the proceedings. These findings provoked campaigns by victims’ rights groups to bring about changes in the criminal justice system.

In response to the victim movement, Western countries have passed legislation creating various victim rights and have established a wide range of services for victims of crime. Victims now have the right to receive information about the status of the case in which they are involved, and they also have the right to apply for financial compensation and psychological assistance. More recently, many jurisdictions have provided victims with participatory rights throughout the criminal process, beginning with the arrest of a suspect and ending with the prisoner’s release from prison. Although most rights and benefits that facilitate victim participation in justice have been generally accepted, the right to actively participate in the judicial process and to have a voice in proceedings has proved controversial and continues to be the subject of heated debate.

Emergence of Participatory Rights for Crime Victims

Research and practice have shown that while some victims prefer to stay out of the criminal justice system, many others wish to participate. The need to accord victims participatory rights has been recognized by many national committees established to study victims in the criminal justice process (e.g., the President’s Task Force on Victims of Crime, 1982, in the United States and the report of the Standing Committee on Justice and Human Rights, 1998, in Canada). Similar reports have been published in other jurisdictions.

The international community has also recognized the need to integrate victims into the criminal justice process. In 1985, the United Nations Seventh Congress on the Prevention of Crime and Treatment of the Offender adopted a declaration that required that victims be allowed to present their views and concerns at appropriate stages of the criminal justice process. Victims also enjoy significant rights in proceedings before the International Criminal Court in the Hague. That court hears cases involving the most serious crimes committed against many hundreds of crime victims.

Many states in the United States have enacted victims’ bills of rights that vary in scope from mandating that criminal justice officials simply show respect toward victims, to establishing a victim’s right to be present and heard, to allowing victims to sit at the prosecutor’s table during trial. In several states, victims’ rights are achieved by specific statute, but a number of states have adopted constitutional amendments to give victims’ rights greater permanence and visibility. The majority of the states also allow for victim participation in sentencing and parole hearings. The states also provide for victim participation in plea bargaining. However, the extent to which victims are allowed to participate in plea discussions varies widely, with no state providing victims with a veto over plea agreements.

Reforms addressing the circumstances in which victims are afraid or reluctant to provide testimony or input into proceedings (such as domestic violence cases) have also been adopted. These laws (or statutory amendments) require the police to make arrests regardless of whether the victim signs the complaint. Similarly, prosecutors are allowed to proceed with a case even if the victim refuses to cooperate (this is known as a “no-drop” policy). Mandatory arrest laws and no-drop prosecutorial policies recognize that victims of domestic violence are especially vulnerable to retaliation from the perpetrator if they press charges. These laws therefore remove this decision from victims. Mandatory charging and prosecuting policies thus create a potential conflict with the principal goal of victims’ advocates: to give victims a say in important criminal justice decisions that affect their lives. Accordingly, some battered women’s advocates and feminist scholars have criticized the mandatory element of these policies on the grounds that they further disempower the crime victim.

Victim Impact Statements at Sentencing

Sentencing attracts more interest than any other stage of the criminal process. Victims look toward a sentencing court to vindicate their suffering and to mark the crime by imposing an appropriate penalty on the convicted offender. It is therefore not surprising that it is at the stage of sentencing that victims are most interested in providing input. Of all the participatory reforms, victim input into sentencing decisions, or victim’s right to submit victim impact statements (VIS), have attracted the most opposition.

The VIS—as the concept is referred to in the United States and Canada—or the victim personal statement (VPS)—its counterpart in England and Wales—is a statement in which the victim describes the impact of the crime on his or her life, including physical, social, psychological, and financial harms. The VIS may be delivered at the sentencing hearing either in writing, orally, or visually (in countries or jurisdictions that allow victim allocution or presentations through a video). Judges are encouraged, or in some jurisdictions required, to take the VIS into account when determining sentence.

Arguments for Victim Participation at Sentencing

Advocates of victims’ rights to participate in the criminal justice process have advanced a variety of arguments, some moral, some penological, and others practical in nature. The idea of victim participation recognizes victims’ wishes to be treated as a party to the proceeding. Allowing victims to participate in the criminal process reminds judges, juries, and prosecutors that behind the “state” there is an individual victim with an interest in how the case is ultimately resolved. It is argued that providing victims with input promotes proportionality in sentencing because victims can provide accurate information about the seriousness of the crime. Victim participation may also lead to increased victim satisfaction with the judicial process and cooperation with the criminal justice system. This, in turn, may enhance the system’s effectiveness in bringing offenders to justice. It may also increase perceptions of the fairness of proceedings, because it will also allow victims to be heard. The use of VIS may also promote psychological healing by helping victims recover from the emotional trauma associated with their victimization. Finally, it may also alleviate some of the feelings of helplessness that can arise as a result of the crime and the inability on the part of victims to express themselves to judicial authorities.

Objections to Victim Participation

Objections to victim participation at sentencing range from assertions that vengeful justice will result to predictions that the system will grind to a halt as a result of the additional time needed to process cases. Opponents of victim participation are reluctant to expose the court to public pressure (created as a response to the victim input), from which it should properly be insulated. There are also concerns that the victim’s “subjective” account of events may take precedence over the allegedly “objective” one pursued by the court. The legal profession has found the prospect of allowing material that may be highly emotional in the courtroom unacceptable and argues that a victim’s input into sentencing is irrelevant to any legitimate sentencing considerations, lacks probative value in a system of public prosecution, and is likely to be prejudicial. Permission to deliver a VIS in person—exercising victim allocution right—has been regarded as particularly objectionable, as an oral version in a very serious crime may be very moving for the judge and this may increase sentence severity or promote sentencing disparity. Objections also included arguments that victim input violates the fundamental principles of the adversarial legal system, which do not recognize the victim as a party to the proceedings. Including victims would transform the trial between the state and the defendant into a tripartite court proceeding (state-victim-offender). Such practices, it was argued, belong only in the so-called continental legal systems with adhesive prosecution or partie civil procedures or to restorative justice schemes.

Research Findings on the Effects of Victim Participation

Victim input into Sentencing

Research provides answers to some of the questions raised in the debate about victim input into sentencing. Although far from conclusive, this research suggests that (a) victim participation does not result in delays or clog the criminal justice system by protracting the time taken to arrive at an adjudication; (b) victim participation does not always or necessarily result in harsher punishment of offenders; (c) victim participation has the potential to increase victim satisfaction with the judicial system; (d) many judges see a benefit in receiving crime impact information directly from the victim by means of VIS; (e) victim statements seldom include inflammatory or prejudicial material that may bias the court against the defendant; and (f) the implementation of victim input laws is still problematic, as a result of which many victims do not benefit from these reforms.

Research has demonstrated that in practice, many victim-related reforms never reach victims. Victims either are unaware of their rights to participate or elect not to exercise them. Studies also reflect considerable confusion about the nature and purpose of VIS. Victims often do not understand the true purpose of VIS or may claim that they did not fill out such statements when, in fact, they did. This may be because victims are questioned by a seemingly endless array of people and may become confused about the purpose of particular interviews. Some jurisdictions have overcome this problem by having victims prepare their own VIS rather than merely provide the information to the investigating officer (in some countries, probation or victim assistance staff).

In common-law jurisdictions, it was observed that only a minority of all victims participate by submitting a VIS. Analysis of court files and surveys of criminal justice professionals, such as prosecutors and judges, confirm that most sentencing hearings take place without the benefit of an impact statement from the victim. The likelihood of an impact statement being submitted will depend on the nature and seriousness of the crime, as well as many other variables. Victims of serious violent crimes are more likely to submit VIS.

Impact of VIS on Victims’ welfare and Satisfaction with the Justice System

Findings on the effect of providing input into sentencing are inconsistent with respect to the issue of victim welfare and satisfaction and suggest, at best, modest effects. The lack of evidence on satisfaction, however, may simply reflect a problematic implementation of the law. The level of satisfaction may also vary with the type of offense committed. In some cases, filing VIS heightens victims’ expectations that they will influence the outcome. When that does not happen, victims may be less satisfied than those who do not submit a statement. In contrast, research has shown that in the continental criminal justice systems (which allow victims a party status and let them provide significant input into the proceedings, victims who participated as subsidiary prosecutors or acted as private prosecutors were more satisfied than victims who did not participate. These differences suggest that in jurisdictions in which victims have more input into proceedings, levels of satisfaction with justice are higher.

Restorative Justice, Therapeutic Jurisprudence, and the VIS

Victims have benefited greatly from the worldwide rise of interest in a new paradigm in justice known as restorative justice. Restorative justice programs have been created in many nations, both developed and developing. These programs exist at all stages of the criminal process, from pretrial conferences involving victims and perpetrators to restorative programs that arrange meetings between victims and prisoners. All restorative justice programs share the same goal of attempting to achieve something more than simply punish the offender.

This approach to addressing crime assigns a prominent role to the victim. Restorative justice advocates argue that victims are better served by an attempt to reconcile, where appropriate, the victim and the offender. When this occurs, the offender accepts responsibility for the offense, expresses remorse for the crime, and often makes some practical form of compensation to the crime victim. Under a purely retributive justice system, which privileges punishing the offender, the benefit to the victim—beyond seeing the offender punished—may be negligible. Another new approach, known as therapeutic jurisprudence, addresses the legal participants’ psychological welfare. This perspective also offers an alternative to the conventional retributive model of criminal justice, one that assigns a very prominent role to the victim.

Although some researchers have questioned the extent to which restorative justice proceedings serve the interests of victims, this approach does focus attention on the connection between victims’ participation and their welfare. The importance of victims’ voices in proceedings, on the one hand, and victims’ roles in the reentry of offenders (which is the ultimate purpose of restorative justice), on the other, has been increasingly recognized in justice practices around the world. This change is due in part to victim advocates’ efforts on behalf of victims and in part to research findings that challenge prevailing beliefs and myths about victims’ interests, motives, and the consequences of input into sentencing. Research has questioned the common assumption that victims are vengeful by showing that they can also be forgiving or merely expressive about what they perceive as injustice (a lenient sentence or a lack of compensation). Research indicates that many crime victims, particularly victims of serious offenses, are eager to describe their victimization experiences. They want a voice to communicate a sense of the harm they have sustained rather than wishing to influence the sentence that is ultimately imposed.

References:

  1. Dignan, J. (2005). Understanding victims and restorative justice. Maidenhead, UK: Open University Press.
  2. Erez, E., & Roberts, J. (2007). Victim participation in the criminal justice system. In R. C. Davis, A. Lurigio, & S. Herman (Eds.), Victims of crime (2nd ed., chap. 17). Thousand Oaks: Sage.
  3. Hall, D. (1991). Victim voices in criminal court: The need for restraint. American Criminal Law Review, 28, 233-266.
  4. Joutsen, M. (1994). Victim participation in proceedings and sentencing in Europe. International Review of Victimology, 3, 57-67.
  5. Orth, U. (2002). Secondary victimization of crime victims by criminal proceedings. Social Justice Research, 15, 313-326.
  6. President’s Task Force on Victims of Crime. (1982). Final report. Washington, DC: Government Printing Office.
  7. Zedner, L. (2002). Victims. In M. Maguire, R. Morgan, & R. Reiner (Eds.), The Oxford handbook of criminology. Oxford, UK: Oxford University Press.

Return to the overview of Victimization in Forensic Psychology.